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What’s Mine is Mine and What’s Yours is Mine?

Monday, June 25th, 2012

California rules for marital property

I am often surprised at the assumptions there are about what happens to what you own when you get married. From Ph.D.s to high school drop-outs, some people assume that marriage converts everything into community property.

And no wonder; this assumption is fostered by popular media. I recently watched Intolerable Cruelty — which wasn’t intolerable to watch, with the gorgeous actors Catherine Zeta-Jones and George Clooney, directed by Joel Coen. The plot was that a revenge-seeking gold digger marries a womanizing Beverly Hills lawyer with the intention of making a killing in the divorce. The day after the marriage, she tells him, we slept together so the marriage is consummated so I will divorce you and get half of everything you own.

That’s not how it works. Community property is everything acquired from earnings, that is personal working efforts, during marriage up until the date the two people separate. Earnings does not include gifts. Inheritances are gifts. If you inherit something during marriage, it does not automatically become community property, but, carelessly or intentionally, you could convert it to community property.

A premarital agreement can help to keep clear what it is you want to keep as separate property. But what if during marriage, you decide you want to change your property ownership interests? Married people have the right to change the California default rule that earnings during marriage equal community property. Postmarital agreements need only be in writing, signed by both wife and husband.

Wikipedia tells us that “Community property was inherited from Mexico’s ganancial community system, which itself was inherited from Spanish law (a Roman-derived civil law system) and ultimately from the Visigoths.” “Ganancias” are gains, profits, earnings.

It’s nice that those ancient folks thought that two people engaged in the maintenance of a household should share equally in whatever their work produced during that relationship. I doubt that they could have imagined what husbands and wives all too often endure in dividing up that work product in today’s family law courts.

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